The Daily Tar Heel
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The Daily Tar Heel

“It has already become a truism that only the indigent and friendless are given the supreme penalty for murder.”

So concluded a 1930 editorial in the Greensboro Daily News. Yet more than 80 years later, in 2013, our state legislature debates how best to reinstate executions in North Carolina.

Senate Bill 306, which by most accounts looks primed to pass the Republican-dominated General Assembly, would expedite the capital sentencing process by removing any remaining barriers to scheduling executions — in large part by repealing the Racial Justice Act.

Passed in 2009, the Racial Justice Act represented an unprecedented attempt on behalf of a state legislature to address unconscious and institutional forms of racial bias in administering the death penalty.

What was particularly groundbreaking about the statute was not its attempt to root racial bias out of criminal procedure, but its approach.

In the reigning judicial scheme, defendants had to prove that prosecutors had intentionally discriminated against them to receive any form of injunctive relief. But the Racial Justice Act allows inmates to rely solely on statistical evidence to prove that race played an operative role in their death sentence.

The N.C. criminal justice system has long been running from the specter of the lynch mob. Throughout the state’s history, the practice and the rhetoric it engenders has served as an instrument of ruling-white hegemony over its black population and other marginalized social groups, including poor whites, the mentally ill and outsiders.

Against this backdrop, the judiciary has attempted to regulate and corral the exercise of local discretion in capital cases so as to sever the link between state-sanctioned execution and community-enacted lynching.

In 1972, the U.S. Supreme Court found the death penalty, as it was implemented at the time, to be a capricious and arbitrary form of punishment.

“These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual),” Justice Potter Stewart wrote.

Since then, the court has continued to accept a variety of legal procedures as appropriate methods for making the death penalty rational and predictable.

Yet study after study continues to demonstrate that race plays an extralegal role in the decision-making process. As UNC Law School Dean Jack Boger argued in a 1987 case, “Mr. McCleskey was undoubtedly sentenced to death, in part, because he committed a homicide and an armed robbery.
“But he was also sentenced to death, in part, we believe, because he was black.”

The Racial Justice Act stands as an argument against the structural forms of racism that still permeate our criminal justice apparatus. It stands against the hyper-individualism that ignores the role that society plays in producing the criminal by isolating him (or her) on its periphery.

It stands for an ultimate adjudication of fairness in cases in which such an irrevocable penalty is involved.

As North Carolinians, we should stand with the Racial Justice Act.

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